HomeMy WebLinkAboutReso 99-159 - Approving entering into an amended and restated Pacific Northwest Project Power Sales Agreement Between the M-S-R Public Power Agency, The Modesto Irr. Dist, and the cities of Santa Clara and Redding ,,
• •
RESOLUTION NO. 99-�
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDDING
APPROVING ENTERING INTO AN AMENDED AND RESTATED PACIFIC
NORTHWEST PROJECT POWER SALES AGREEMENT BETWEEN THE
M-S-R PUBLIC POWER AGENCY, THE MODESTO IRRIGATION
DISTRICT, AND THE CITIES OF SANTA CLARA AND REDDING.
WHEREAS, the City of Redding is a member of the Modesto-Santa Clara-Redding Public
Power Agency (M-S-R); and
WHEREAS, the orderly administration of the assets of M-S-R requires that agreements
between M-S-R and its members be kept current; and
WHEREAS, it is necessary to update the Pacific Northwest Project Power Sales Agreement
between M-S-R and its members to coincide with M-S-R's contractual arrangements in the Pacific
Northwest;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Redding
approves entering into the Amended and Restated Pacific Northwest Project Power Sales
Agreement, a copy of which is attached and made a part hereof, and that the City Manager is
authorized to sign the execution copies of the Agreement on behalf of the City.
I HEREBY CERTIFY that the foregoing resolution was introduced, read and adopted at a
regular meeting of the City Council on the 7th day of December, 1999, by the following vote:
AYES: COUNCILMEMBERS: Cibula, Kight, Pohlmeyer and McGeorge
NOES: COiJNCII,MEMBERS: None
ABSENT: COiJNCIL MEMBERS: Anderson
ABSTAIN: COiJNCIL MEMBERS: None
� N`J
ROBERT C. ANDERSON, Mayor
�
Attest: Form Approved: �
_ �
� � �� �,,L�t��,�'' `���" '��
�}`,
Connie Strohmayer, City Clerk W. Leonard Wingate, ity Attorney �'j
�i�'1 �� I V C� � S .-i
� � q �� 3 / y �
1
2
AMENDED AND RESTATED
3
4
5
6
PACIFIC NORTHWEST PROJECT
7
g POWER SALES AGREEMENT
9
10 BETWEEN
11
12 THE M-S-R PUBLIC POWER AGENCY
13
14 A�
15
16 THE MODESTO IRRIGATION DISTRICT,
17
1 g THE CITY OF SANTA CLAR.A,
19
20 AND
21
22 THE CITY OF REDDING
23
24
25
26
27
28
• �
1
TABLE OF COTiTENT�
�
3 SECTION PAGE
4
1. PARTIES . . . . . . . . . . . . . . . . . . • . - - - - . . . . . . . . . . . . . . . - - - - . . . . . . 1
5
2. RECITALS . . . . . . . . . . . . . . . . . . . � - - - - - . _ . . . . . . . . . . . . - - - - - - - � - 1
6
3. AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7
4. EFFECT� DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . � - - - . . . . 2
8
5_ TERM AND "['�RMINATYON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
9
6. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . � - - - . _ . . . . . . . . . . . . . 3
lo
7. SALE AND DELIVERY OF PACIFIC NORTHWEST PROJECT CAPACITY
�1
AND/ORfiNERGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12
8. OBLIGATION TO PURCHASE; ANNIJAL BUDGET;
13
B�.LXNG AND METHOD OF PA�'MENT . . . . . . . . . . . . . . . . . . . . . . . 7
14 9. SCHEDULZNG OF DET,I'V"ERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
15
10. POINTOFDELI�lERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I1
16
11_ REACTNEPOWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - - - . - - . . il
17 12_ DUTIES ANI� �t.ESPONSIBILITIES OF M-S-R . . . . . . . . . . . . . . . . . . 12
is
13. RATESANDCHARGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . � . . 13
19
14. EVENTOFDEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2a
l5. TRANSFER, ASSIGN'MENT, SALE, AND EXCHANGE OF
21
CAPACITY AND/OR ENERGY A.�TD �TGHTS T�-�RETO . . . . . . . . . 17
Z2
�b, SA.LE OF EXCESS PACIFIC NORTHWEST PROJECT CAPACYTY
23
ANDIORENERGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
24
17. OPERATION AND NIAIN'I`ENA�TCE . . . . . . . . . . . . . . . . . . . . . . . . . . 18
25
18. LIABII,ITY OF M-S-R MENiBERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
26
��
19_ NOTICE AND COMPUTATT.ON OF TIlVIE . . . . . . . . . . . . . . . . . . . . . . 20
28 i
• •
1
2
3
a 20. APPLICABLELAW - - - - - - - - • - - - - - - - - - - - - - - - - - - - - - � - - � - - . _ . . 22
5 21. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6 22. ASSiGNMENT OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
� 23_ MEMBERS' OBLIGATIONS SE`TERAL . . . . . . . . . . . . . . . . . . . . . . . 22
8 24. PRCT�'IC 1�TORTHWEST U'T�I.ITIES AS THIRIa-PART�SC
9 BENEFICIAR�S . . . . . . . . . . . . . . . . . . . � - - - - - - - - � - - - - - - - - - - - - - 22
l0 25. HEA.DINGSNOTBINDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11
l2
13
14
15
16
17
18
19
20
21
?2
23
24
25
26
27
28 ll
� • •
1
2 PACIFIC NORTHWEST PROJECT POWER SALES AGREEMENT
3 1. PARTIES:
4 The Parties to this Amended and Restated Pacific Northwest Power Sales Agreement
5 ("Agreement"), made and entered into as of , , are the M-S-R PUBLIC
6 POWER AGENCY,a Joint Exercise of Powers Agency duly organized pursuant to Article 1
7 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California
8 (hereinafter "M-S-R"), the MODESTO IRRIGATION DISTRICT, an irrigation district
9 organized under the laws of the State of California(hereinafter"Modesto"), the CITY OF
10 SANTA CLARA, a municipal corporation organized under a charter duly adopted under the
11 Constitution of the State of California (hereinafter "Santa Clara"), and the CITY OF
12 REDDING, municipal corporation organized under the laws of the State of California
13 (hereinafter"Redding"), with Modesto, Santa Clara, and Redding being sometimes referred
14 to individually as "Member" and being sometimes referred to collectively as "Members".
15 M-S-R, Modesto, Santa Clara, and Redding are hereinafter sometimes individually referred
16 to as a"Party" and are hereinafter sometimes collectively referred to as the "Parties".
17 2. RECITALS:
18 2.1 WHEREAS, the Members are members of the Transmission Agency of Northem
19 California (TANC) which is a participant in the California-Oregon Transmission
20 Project (COTP); and
21 2.2 WHEREAS, the Members have authorized M-S-R to (i) investigate the potential
22 power transactions available for use with the Members' transmission rights in the
23 COTP; (ii) contact various Pacific Northwest Utilities and assess their willingness
24 to sell power to M-S-R; and (iii) conduct negotiations with the Bonneville Power
25 Administration (Bonneville), Portland General Exchange (PGX), and the Pacific
26 Northwest Generating Company (PNGC) for the sale of such power; and
27
2g 1
� �� � �
1 2.3 WHEREAS, the Members have authorized M-S-R to develop power purchase
2 agreements and such agreements will be executed by M-S-R pursuant to the Joint
3 Powers Agreement upon approval of the M-S-R Commission; and
4 2.4 WHEREAS, M-S-R has executed a Firm Power Sale Agreement with Bonneville on
5 September 30, 1997, Contract No. 97PB-10120 (Contract); and
6 2.5 WHEREAS, the Members desire M-S-R to deliver any such purchased power(less
7 transmission losses) to the designated Point(s) of Delivery for their respective
8 accounts or to systems of others for credit to their respective accounts in accordance
9 with the Participation Percentages; and
10 2.6 WHEREAS, the Members have heretofore entered into Project Agreement No. 8
11 dated as of May 18, 1988 to provide a source of the initial financing of the Pacific
12 Northwest Project as defined in Section 6 herein; and
13 2.7 WHEREAS, it is the intent of the Parties that this Agreement require the Members
14 to advance funds to M-S-R to pay for the purchase of power from Pacific Northwest
15 Utilities prior to the time M-S-R must pay such amounts to such utilities; and
16 2.8 WHEREAS, M-S-R maintains contractual rights to resources in the Pacific
17 Southwest which may be utilized in conjunction with the Pacific Northwest Project,
18 3. AGREEMENT:
19 In consideration of the premises and mutual covenants and agreements contained in this
20 Agreement, the Parties agree as follows:
21 4. EFFECTIVE DATE:
22 This Agreement shall become effective when executed by the Parties.
23 5. TERM AND TERMINATION:
24 This Agreement may be terminated upon the mutual agreement of the Parties, provided
25 however, that this Agreement shall not be subject to termination by any Party under any
26 circumstances, whether based upon the default of one or more of the Parties under this
27
28 2
, !. � �
1 Agreement, or any other instrument, or otherwise until all obligations of M-S-R under the
2 Pacific Northwest Purchase Contracts as defined in Section 6.14 herein are satisfied or
3 irrevocable provisions for such satisfaction have been completed. Termination of this
4 Agreement shall not affect the Members' individual or collective liabilities or obligations
5 accrued hereunder.
6 6. DEFINITIONS:
7 In addition to other terms defined herein, the following terms, whether in the singular or in
8 the plural, when used herein and initially capitalized, shall have the meanings specified:
9 6.1 "Act" means the provisions relating to joint exercise of powers found in Chapter 5
10 (commencing with Section 6500), Division 7,Title 1 of the Government Code of the
11 State of California, as amended from time to time.
12 6.2 "Agreement" means this Amended and Restated Pacific Northwest Project Power
13 Sales Agreement as originally executed and as it may be amended from time to time.
14 6.3 "California-Ore�on Border(COBL means (i)the points along the alternating current
15 (AC) portions of the Pacific Northwest -Pacific Southwest Intertie where ownership
16 changes between Pacific Northwest Utilities and Pacific Southwest Utilities; and (ii)
1? the northern terminus of the COTP; all at or near the California-Oregon state
18 boundary in the vicinity of the Malin Substation in Oregon.
19 6.4 "Commission" means the commission of M-S-R.
20 6.5 "Electric System" means all properties and assets, real and personal, tangible and
21 intangible,of any Member(whether leased or owned)now or hereafter existing, used
22 in or pertaining to the generation, transmission, transformation, distribution or sale
23 of electric capacity and/or energy, including all additions, extensions, e�cpansions,
24 improvements and betterments thereto; provided, however, that to the extent the
25 Member is a joint owner of an asset or property, only the Member's ownership
26 interest in such asset or property shall be considered to be part of its Electric System.
27
2g 3
• .
1 6.6 "Fiscal Year"means the twelve-month period terminating on December 31 of each
2 year, or any other annual accounting period hereafter selected and designated by M-
3 S-R as its Fiscal Year for purposes of this Agreement.
4 6.7 "Joint Powers AQreement"means the agreement among Modesto, Santa Clara, and
5 Redding dated April 29, 1980, as thereafter amended from time to time, which
6 created M-S-R under the Act.
7 6.8 "M-S-R Controller"means the controller of M-S-R as provided in the Joint Powers
8 Agreement.
9 6.9 "Pacific Northwest Monthlv Power Costs" shall mean all of M-S-R's costs resulting
10 from the purchase of firm power from Bonneville as provided for in the Contract.
11 Pacific Northwest Monthly Power Costs shall consist of costs attributable to the
12 Pacific Northwest Project, and shall include, but not be limited to, the following:
13 6.9.1 Payments made by M-S-R to purchase firm power as provided for in the
14 Contract.
15 6.9.2 All M-S-R expenses related to the conducting of the business of M-S-R with
16 respect to the Pacific Northwest Project including salaries, fees for legal,
17 engineering, financial, and other services, insurance costs, equipment costs,
18 and all other expenses properly related to the conduct of such business.
19 6.10 "Amended and Restated O�eratin� A�reement" means the Operating Agreement
20 between M-S-R and the Members executed in counter parts and dated
21 February 1, 1997.
22 6.11 "Pacific Northwest-Pacific Southwest Intertie (Intertiel" means the extra-high
23 voltage electric transmission system between the Pacific Southwest and the Pacific
24 Northwest approved by Congress in 1964 for Federal participation. The Intertie
25 consists of two 500-kV AC lines extending from John Day Substation in Oregon
26 south into the Pacific Southwest, and a 1000-kV DC line extending from Celilo
27
2g 4
� .
1 Substation in Oregon to Sylmar Substation in Southern California, and expansions,
2 improvements, or additions thereto.
3 6.12 "Pacific Northwest Project" means M-S-R's activities to secure power resources
4 from Pacific Northwest Utilities for use of and through the Members' ownership
5 interest in the COTP or rights to use the Intertie pursuant to the Pacific Northwest
( Project Agreement.
7 6.13 "Pacific Northwest Pro�ct A�reements"shall mean M-S-R Project Agreement No. 8,
g the Amended and Restated Operating Agreement dated February l, 1997, this
9 Agreement, and such other agreements which M-S-R may enter into in connection
10 with the Pacific Northwest Project.
11 6.14 "Pacific Northwest Purchase Contract" means the contract between M-S-R and
12 Bonneville for the purchase of firm power at the Point(s) of Delivery.
13 6.15 "Pacific Northwest Utilities"means one or more utilities with which M-S-R executes
14 power purchase, sale, and/or exchange contracts on behalf of the Members for use
15 in conjunction with the Members' ownership interest in the COTP.
16 6.16 "Partici�ation Percenta�es" means the following percentages when (i) used in the
17 context of general and administrative M-S-R activities, and (ii) applicable to M-S-R
18 Pacific Northwest Contracts:
19 Percent
2 p Modesto SO%
21 Santa Clara 35%
22 Redding 1 S o
23 100%
24 and other percentages as the Members may agree upon with respect to a specific M-
25 S-R transaction in accordance with a specific Pacific Northwest Contract.
26
27
2g 5
� �
1
2 6.17 "Point of Deliverv"means the California-Oregon Border and such other point(s) as
3 provided for in the Pacific Northwest Contract(s) or as M-S-R and the Member(s)
4 may agree upon.
5 6.18 "Revenues" means all income, rent, rates, fees, charges, and other moneys derived
6 by a Member from the ownership or operation of its Electric System, including,
7 without limiting the generality of the foregoing: (i) all income, rents, rates, fees,
8 charges, or other moneys derived from the sale, furnishing, and supplying of electric
9 capacity and/or energy and other services, facilities,and commodities sold, furnished,
10 or supplied through the facilities of the Electric System, (ii) the earnings on and
11 income derived from the investment of such income, rents, rates, fees, charges, or
12 other moneys to the extent that the use of such earnings and income is limited to the
13 Electric System by or pursuant to law and (iii) the proceeds derived by a Member
14 directly or indirectly from the sale, lease, or other disposition of all or any part of its
15 Electric System as permitted hereby; but the term "Revenues" shall not include
16 customers' deposits or any other deposits or advances subject to refund until such
17 deposits or advances have become the property of the Member.
18 6.19 "Revolvin�Fund"means an account established by the M-S-R Controller and funded
19 by the Members no later than the tenth day of the first month of each Fiscal Year in
20 an amount equal to the largest expected monthly obligation to be paid by M-S-R
21 under the Pacific Northwest Contracts for the Fiscal Year.
22 6.20 "Transmission AQreements" means the agreements between TANC, M-S-R, or its
23 Members and other utilities for transmission service, energy exchange, or other
24 similar agreements entered into or to be entered into together with any memoranda,
25 agreements, letters of intent, ar definitive agreements providing for the transmis.sion
26 of capacity and/or energy associated with the Pacific Northwest Purchase Contract
27
2g 6
• �
1 to or for the account of the Members, as any such agrccment may be amended and
2 supplemented from time to time.
3 7. SALE AND DELNERY OF PACIFIC NORTHVt�ST P�tOJECT CAPACITY AIVD/OR
4 ENERGY:
5 7.1 In consideraxion of the Members' agreemmt hereunder to pay Pacific Northwest
6 Monthly Power Costs, each Iv�ember shall have an entitlement ta its Participation
7 Percentage share of the Pacific Northwest Project power and shall make payment for
8 its share in accordance with Sections 8 and 13 herein
9 7.2 M-S-R will do all things necessary and po9sible to deliver the firm power of the
10 Pacific Northwest Project pursuant to Project Agreemenis for the account of the
11 Members at the Point ofDelivery in accordance with their Participation Percentages.
12 The Members 9hall be responsible for additional power required as reserves against
13 planned or e�.tergency service interruptions.
14 7.3 M-S-R Members will do all things necessary and possible to accept the deli�very of
15 the electric power of the Pacific Northwest Project pursuant to Project Agreements
I6 with M-S-R at the Point o�Delivery_
17 8. OBLIGATION TO PURCHASE� ANN'UA.L BUDGET• BII,LING AND ME'£HOD OF
18 PAYMENT:
19 8.1 Commencir►g on the date that�acific Northwest Project deliveries of electric capacity
20 andlor energy begin using tb.e Members' ownership interest in ihe COTP tEuougb
21 TANC, ea�ch Member shall be obligated to pay its share of the Pacific Northwest
22 Monthly Power Costs as specified in Section 8.5.
23 8.2 Bach Member agrees to purchase from M-5-Rits respective Participauon Percez►tage
24 share of power purchased by M-S-R puzsuant to the Pacific Northwest l�urchase
25 Con�acts.
26
27
?g 7
� �
1
2 83 ln accozdance with the annual M-S-R budget process, M-S-R shall include an
; estimate ofPacific Northwest Monthly Power Costs and revcnues for the Fiscal Year.
4 Such annual budget shall reflect the most rece.ot information available to M-S-R
5 pursuant to the Pacific Northwest Purchase Contract and the Tra.nsmission
6 Agreements. The annual budget shall establish tkte balance required inthe Revolving
� �und and any contributions requiued by the Members. As required from time to time
8 dwing any Fiscal Year, the Commission may, after twenty-five (25) days' notice to
9 tlne Members, require addztional Member cantributions.
10 8.4 The payments to be made by each Member for its share of the total amount of Pacific
11 Northwest Monthly Power Costs s5all be the sum of the following:
12 8.4.1 The Member's Participation Percentage times M-S-R's firm power payments
13 as identified in Section 6.9.1.
14 8.4.2 Tn the event a mi.nimwon charge is assessed to M-S-R by a third party due to
15 the failure of a Member to schedule and receive energy, th.en the Member
16 shall pay M-S-R for such charge. If tbe minimum charge is due to the;failure
1? of z�ore than one Member to schedule and receive energy,tlien the Members
�g shall share in the payment of the charge to M-S-R in proportion to the
19 Members' respective failure to schedu)e and recei�ve energy.
24 8.4.3 The Members' Particxpation Percentage times all costs incurred by M-S-R
z� pursuant to Section 6.9.2 for such month.
22 8.4.4 If for any reason the �vvheeling e?cpenses, replacement energy costs, andlor
23 transmission losses incurred by M-S-R pursuant to the Transmission
24 Agreements are not proportional to the use hy each Member, then an
25 adjustment shall be made in the charges to each Member in proportion to the
26 costs paid by M-S-R on each Member's behalf'
27
28 g
i * �
1 8.4.5 There shall be applied, as a credit against Pacific Northwest Monthly Power
2 Costs, all receipts, revenues, insurance proceeds, and other moneys received
3 from the sale or other disposition of surplus Pacific Northwest Project
4 capacity and/or energy.
5 8.5 The M-S-R Controller will invoice the Members for the costs pursuant to Section 8.4.
6 Amounts shown on the invoices to the Members are due and payable twenty-five
7 (25) days after the date of the invoices and shall bear simple interest from that date
8 until paid at the lesser of: (i) the rate of five (5) percent per annum plus the average
9 Federal Funds Rates published by Merrill Lynch for the week prior to the date of
10 delinquency (or replacement rates as established by the M-S-R Commission in the
� 11 event these rates are no longer published) or(ii) the maximum rate as permitted by
12 law.
13 8.6 If a Member shall question or dispute the correctness of any billing statement by
14 M-S-R, it shall pay M-S-R the amount shown on the billing statement when due and
15 shall within thirty (30) days thereafter provide M-S-R with a detailed statement
16 showing all claims of error. If the bill is determined to be incorrect,M-S-R will issue
17 a conected bill and make any necessary adjustment on the billing statement
18 immediately following such determination. If M-S-R and the Member fail to agree
19 on the correctness of a bill within thirty (30) days after the Member has provided
20 such detailed statement, M-S-R and such Member shall promptly seek settlement of
21 the dispute by a court of competent jurisdiction (rather than seeking to settle the
22 dispute by arbitration). Such action, however, shall not be a basis for excuse of
23 performance of any Party's obligation under this Agreement.
24 8.7 The obligation of a Member to make payments hereunder shall not be subject to any
25 reduction, whether by offset, counterclaim, recoupment or otherwise, and shall not
26 be othenvise conditioned upon the performance by M-S-R under this Agreement or
27
Zg 9
� �
1 any other agreement or instrument; roQ vided,however,that nothing contained herein
2 shall be construed to prevent or restrict a Member from asserting any other rights
3 which it may have against M-S-R under this Agreement or under any provision of
4 law, including the institution of legal proceedings for specific performance or
5 recovery of damages.
6 8.8 The M-S-R Controller shall be responsible for maintaining the records of the
7 Revolving Fund. Once the balance of the Revolving Fund is determined for the
8 beginning of each Fiscal Year, it will be the responsibility of the M-S-R Controller
9 to notify the Members within twenty-five (25) days pursuant to Section 192 of this
10 Agreement, of additional cash requirements necessary to bring the Revolving Fund
11 to the proper balance consistent with the Participation Percentages of the Members.
12 Payments by the Members shall be within twenty-five (25) days of the date of the
13 invoice. The M-S-R Controller will pay M-S-R's obligations under the Pacific
14 Northwest Purchase Contracts from the Revolving Fund account and deposit all
15 Member payments into the Revolving Fund account.
16 9. SCHEDULING OF DELIVERIES:
17 9.1 Each member shall be entitled to schedule at the Point(s) of Delivery for its account,
18 through M-S-R, firm power from the Pacific Northwest Project up to the amount
19 obtained pursuant to its Participation Percentage of M-S-R's firm power in
20 accordance with the Pacific Northwest Operating Agreement.
21 9.2 The delivery of firm power from the Project to M-S-R will be scheduled by M-S-R
22 based on the schedules received from the Members in advance, in accordance with
23 the Amended and Restated Operating Agreement and procedures adopted by M-S-R
24 from time to time, and accounted for on the basis of such advance schedules. M-S-R
25 will use its best efforts to cause the delivery of firm power to the Point(s) of Delivery
26 for the account of the Members in accordance with the schedule.
27
28 10
• •
1 9.3 Firm power scheduled by M-S-R and the Members for delivery shall be measured at
2 the Point(s) of Delivery. Ihe Members' entidement to deliveries of firm power
; associated with their Participation Percentage, but not the Members' payment
4 obligation, shall be reduced by any tranc,T,;ssion losses as billed by the wheelin�
S utility resulting from delivery of such firm power to the Points of Delivery.
6 9.4 Further scheduling obligations of M-S-R aad the Members and the details thereof
7 will be established under the A.m,ez►ded and Restated Operating A.greement.
8 10. POiNT(S) �F DELIVERY_
9 1 b.l Firm power scheduled by the Members pursuant to Section 9 of this Agreement will
10 be delivered at the Point(s) of Delivery. Such deliveries will not be adjusted for
11 transmission losses assigned to the firm power from the source o�the firm power to
12 the Poiat(s) of Delivery pursuant to the applicable Pacific Northwest Purcha,ae
I 3 Contract.
14 10.2 Each Member shall be responsible for delivery of firm power and transm�ssion losses
15 from the Point(s)ofDelivery to the Member's system or�he system of the Member's
16 desigrxee.
17 10.3 ?he Point(s) of Delivery may be changed or additional Points of Delivezy may be
l8 added as M-S R and the Member(s)agree upon from time to time in conformity�with
I9 transmission arrange�ents then in effec� pro�vided that each Member will continue
20 to be responsible foz al1 transmission co�ts incurred directly or indirectly on its behalf
21 by M-S-R
22 11. REACTIVE POWER:
23 Each Member will be responsible for its proportionate shaze of any costs incurred by M-S-R,
24 or its agent, or associated with maintaining a required power factor under the Pacific
25 Northwest Purchase Contract or agreements with other participants in the COTP.
26
27
28 11
• •
1
2 12. DUTIES AND RESPONSIBILITIES OF M-S-R:
3 12.1 The duties and responsibilities of M-S-R under the Project A;reements shall be
4 subject to the administration of the M-S-R Commission. The Members shall be
S entitled to participate in the decisions of the Commission with respect to the Pacific
6 Northwest Project in accordance with voting rights given to them, as Members,under
7 the Joint Powers Agreement. M-S-R through its Commission shall have the
8 following duties and responsibilities, among others:
9 12.1.1 Provide periodic reports to the Members at the management level with
10 respect to the Pacific Northwest Project.
11 12.1.2 Review, discuss, and attempt to resolve any disputes between M-S-R, the
12 Members, and Pacific Northwest Utilities in accordance with M-S-R's
13 rights under the Pacific Northwest Purchase Contract.
14 12.1.3 Review, modify, and approve the practices and procedures to be followed
15 by the Members for the scheduling and controlling of firm power from the
16 Pacific Northwest Project.
17 12.1.4 Review, modify, and approve all amendments and supplements to the
18 Pacific Northwest Project Agreements.
19 12.1.5 Approve all consultants or advisors, including but not limited to, financial
2p advisors and legal counsel.
21 12.1.6 Perform such other functions and duties as may be provided for herein or
22 in the Pacific Northwest Project Agreement or as may otherwise be
23 appropriate.
24 12.1.7 Arrange for periodic audits of the books and records of the Pacific
25 Northwest Utilities in accordance with the Pacific Northwest Purchase
26 Contract.
27
28 12
�� � �
1
2 13. RATES AND CHARGES:
3 13.1 Each Member shall establish rates and charges for electric service provided by its
4 Electric System so as to provide Revenues sufficient, together with other available
5 funds derived from its Electric System, to pay all amounts payable when due under
6 this Agreement and to pay all other amounts payable from, and all lawful charges
7 against or liens upon, the Revenues of its Electric System.
8 13.2 Each Member shall make payments under this Agreement from any funds or
9 revenues available to the Member for purposes of satisfying any provisions of this
10 Agreement.
11 13.3 Except as otherwise provided in Section 14.3 of this A�reement, no Member shall
12 be liable under this Agreement for the payment obligation of any other Member.
13 13.4 Each Member covenants and agrees that it shall, at all times, operate its Electric
14 System and the business in connection therewith in an efficient manner and shall
15 maintain its Electric System in good repair, working order, and condition and shall
16 cooperate with M-S-R in the performance of the respective obligations of such
17 Member and M-S-R under this Agreement.
18 13.5 As long as a Member is a party to this Agreement, the Member further agrees that it
19 will not take any action which will lead to its withdrawal as a Member of M-S-R or
20 other termination of its membership in M-S-R during the term of this Agreement and
21 that it will not vote for or otherwise participate in any action to dissolve or otherwise
22 terminate the existence of M-S-R during the term of this Agreement.
23 14. EVENT OF DEFAULT:
24 14.1 Upon failure of a Member to make any payment in full when due under this
25 Agreement or to perform any other obligation hereunder,M-S-R shall promptly make
26 demand upon such Member, and if said failure is not remedied within twenty-five
27
28 13
� • �
1 (25) days from the date of such demand, it shall constitute a default at the expiration
2 of such period. Notice of such demand shall be provided to the other Members by
3 M-S-R.
4 14.2 Upon the default of any Member hereunder, M-S-R shall use its best efforts to sell
5 and transfer all or a portion of such Member's Participation Percenta�e of Pacific
6 Northwest Project capacity and/or energy for all or a portion of the remainder of the
7 term of this Agreement.
8 14.2.1 M-S-R shall first offer such portion to the other Members in proportion to
9 their respective Participation Percentages at the time of such default at a
10 price equal to the total obligations hereunder of the defaulting Member, in
11 accordance with this Agreement.
12 14.2.2 If any nondefaulting Member declines to purchase all of its portion of the
13 Participation Percentage of a defaulting Member, any remaining
14 nondefaulting Member, if it has accepted the first offer, shall have the right
15 to acquire all or a portion of the remaining Participation Percentage of a
16 defaulting Member.
17 14.2.3 If any part of such capacity and/or energy cannot be sold to the other
18 Members, M-S-R shall use its best efforts to sell and transfer such capacity
19 and/or energy to others at a price at least equal to the total obligations
20 hereunder of the defaulting Member, in accordance with this Agreement.
21 14.2.4 If all or any portion of the defaulting Member's Participation Percentage of
22 Pacific Northwest Project capacity and/or energy is sold and transferred,
23 the defaulting Member's obligation shall not be reduced, and the defaulting
24 Member shall remain liable to M-S-R to pay the full amount of its
25 Participation Percentage of monthly costs as if such sale had not been
26
27
28 14
3 • •
1 made, except that such liability shall be discharged to the extent that M-S-R
2 shall receive payment from the purchaser or transferee thereof.
3 14.3 If any part of a defaulting Member's Participation Percentage cannot be sold to the
4 other members or to a third party,the Participation Percentage of each nondefaulting
5 Member shall be automatically increased to the ratio between such nondefaulting
6 Members participation Percentage and the aggregate of the Participation Percentages
7 of the nondefaulting Members expressed as a percentage.
8 14.3.1 Such increase shall be for purposes of allocating Pacific Northwest
9 Monthly Power Costs for the remaining term of this Agreement and the
10 defaulting Member's Participation Percentage shall be reduced
11 correspondingly; provided, however, that the maximum increase for any
12 nondefaulting Member shall not exceed twenty-five (25) percent of the
13 nondefaulting Member's original Participation Percentage. Such increase
14 shall become effective only after sufficient time is allowed for M-S-R, in
15 its sole determination, to decide if such default by the Member is
16 permanent,but in no event less than thirty (30) days nor more than six (6)
17 months from the date of such default.
18 14.3.2 If any portion of the defaulting Member's Participation Percentage of
19 project capacity and/or energy remains available, after applying the
20 maximum increase to the nondefaulting Member's Participation
21 Percentages, then M-S-R shall use its best effort to sell such portion of
22 Participation Percentage of Project capacity and/or energy to others at the
23 best available price,with the nondefaulting Members having a right of first
24 refusal in proportion to their Participation Percentage.
25 14.3.3 Any revenues received by M-S-R from any transfer of the defaulting
26 Member's Participation Percentage of Pacific Northwest Project capacity
27
28 15
� •
1 and/or energy shall be applied to reduce the payment due from the
2. Members.
3 14.3.3.1 Such revenues shall be first used to offset payments from the
4 nondefaulting Member(s) if (i) the nondefaulting Members'
5 Participation Percentage increased because of the default and (ii)
6 the Pacific Northwest Monthly Power Cost associated with the
� increased Participation Percentage is above an equivalent supply
g of capacity and/or energy available to the nondefaulting
9 Member(s). Revenues shall be allocated to the nondefaulting
10 Member(s) in proportion to their increased Participation
11 Percentages to the degree that the net Pacific Northwest Monthly
12 Power Cost, after the application of revenues, becomes equal to
13 the cost of an equivalent supply of capacity and/or energy to the
14 nondefaulting Member(s).
15 14.3.3.2 Any revenues remaining after the allocation procedures of
16 Section 14.3.3.1 shall be used to offset the obligations of the
17 defaulting Member.
18 14.3.3.3 No such revenues received by M-S-R shall discharge such
19 defaulting Member from its remaining obligations under this
20 Section.
21 14.4 If the defaulting Member shall fail or refuse to pay any amounts due to M-S-R, the
22 fact that any other Member has increased its obligation to make such payment shall
23 not relieve the defaulting Member of its liability for such payments.
24
25
26
27
28 16
, � •
1
2 15. TRANSFER ASSIGNMENT. SALE. AND EXCHANGE OF CAPACITY AND/OR
3 ENERGY AND RIGHTS THERETO:
4 15.1 As used in this Section 15, the term "Transfer", when relating to capacity and/or
5 energy purchased by M-S-R under any Pacific Northwest Purchase Contract shall
6 mean the transfer, assignment, sale, exchange, or other disposition of any such
7 capacity and/or energy.
8 15.2 Other than this Section and Section 15.3,this Agreement places no restraint upon any
9 Transfer of all or part of a Member's Participation Percentage in the Pacific
10 Northwest Purchase Contracts.
11 15.2.1 Such Transfer shall not relieve the Member making such Transfer of its
12 obligations under this Agreement, unless the recipient of Transfer is one or
13 more of the other M-S-R Members.
14 15.2.2 Before a Member completes a Transfer of capacity and/or energy under any
15 Pacific Northwest Purchase Contract, such capacity and/or energy must be
16 offered to the other M-S-R Members.
17 15.3 No Member shall transfer ownership of all or substantially all of its Electric System
18 to another entity until it has first complied with the provisions of this Section.
19 15.3.1 Before the date of such transfer, the rights and obligations of the
ZO transfemng Member under this Agreement shall have been disposed of by
21 transfer, assignment, sale, or exchange pursuant to provisions and
22 limitations of this Section 15 effective as of the date of the transfer.
23 15.3.2 M-S-R may require that sufficient moneys from the transfemng Member
24 be collected to discharge financial obligations and that such moneys be
25 irrevocably set aside and maintained in a trust account, as a condition to the
26 transfer of the Electric System, if no other adequate assurance is available.
27
28 17
� � •
1 15.3.3 A consolidation with another governmental entity or change in
2 governmental form is not deemcd a transfer of ownership.
3 16. SALE OF EXCESS PACffiC NORTHWEST PROJECT FIRM POWER:
4 16.1 In the event a Member shall elect to sell all or any part of the fum power to which it
5 is entitled under this Agreement or determines that all or any part of the firm power
6 which can be produced from t�ie Pacific Northwest Project is in excess of the
7 requirements of the Member,M-S-R shall, at the wntten request of the ti(ember,use
8 its best effoRs to sell and transfer on behalf of the Member for any period of time, all
9 or any part of such firm power to such other Members as shall agree to take such firm
10 power, M-S-R as a�ent shall have the ri�ht, on behalf of the Mesnber, to dispose of
11 such firm power to others at the best available price above a minimum price
12 established by the selling Member.
13 161 If all or any portiozz of such firm po�over is sold pursuant to this Section 16, the
14 Iv�ember shall remain liable and continue to make payments to M-S-R for its share
15 of the full Pacx£ic Northwest Monthly Power Costs as if such sale had not been made;
16 provided, howe�ver, that such liability shall be discharged to the extent that M-S-R
17 has received payment �or such firm power from another purchaser or purchasers
18 tb.ereof and provided further, that any amounts received by M-S-R as payment for
19 such firm power which is greatez than the amounts owed by the Member to M-S-R
20 in respect to svch fimi power shall be pzom�tly pa�d by M-S-R to the Member.
21 17. OPERATION AND MAlNTENANCE:
22 Subject to the provisions of the Ameoded and Re,4tated Operating A�eement, M-S-R
23 covenants and agrees that it �vvill use its best efforts to manage and perform M-S-R's
24 obligations under the Pacific Northwest Purchase Contracts or cause the same to be
25 mauaged i� an efficient and economical manner.
26 18_ LIABII,TTY OF M-S-R M�MBfiRS:
��
28 18
• •
1 18.1 M-S-R has entered into this Agreement for the benefit of its Members and the
2 Members are bound o�ly by the terms of this Agreement between the Parties.
3 18.2 Each Member agrees that neither M-S-R nor any of its Commissioners, officers,
4 employees, or agents shall be liable to the Members for direct or consequential loss
5 or damage suffered by the Members as a result of the
6 performance or nonperformance (whether negligent or otherwise) of M-S-R under
7 this Agreement. Each Member releases M-S-R and its Commissioners, officers,
8 employees, and agents from any claim or liability incurred as a result of any actions
9 or inactions of M-S-R under any Project Agreement.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 19
� 1 ' • .
1
2 19. NOTICE AND COMPUTATION OF TIME:
3 19.1 Any notice or demand made under this Agreement shall be deemed properly given
4 if mailed certified mail,postage prepaid,retum receipt requested or by Express Mail,
5 or by telecopy and addressed as follows:
6 M-S-R:
General Manager
7 M-S-R Public Power Agency
P.O. Box 4060
8 Modesto CA 95352
telecopy: (209) 526-7575
9
Modesto Irrigation District:
10 General Manager
Modesto Irrigation District
11 P.O. Box 4060
Modesto CA 95352
12 telecopy: (209) 526-7575
13 City of Santa Clara:
City Manager
14 City of Santa Clara
1500 Warburton Avenue
15 Santa Clara CA 95050
telecopy: (408) 241-8291
16
City of Redding:
17 City Manager
City of Redding
18 760 Parkview Avenue
Redding CA 96001
19 telecopy: (530) 224-4389
20
21
22
23
24
25
26
27
28 20
� •
1
2 19.2 Any payment or invoice under this Agreement shall be deemed properly given if
3 mailed certified mail, postage prepaid, return receipt requested or by Express Mail,
4 or by telecopy (in the case of invoices) and addressed as follows:
5 M-S-R:
Controller
6 M-S-R Public Power Agency
P.O: Box 4060
7 Modesto CA 95352
telecopy: (209) 526-7575
8
Modesto Irrigation District:
9 Controller
Modesto Irrigation District
10 P.O. Box 4060
Modesto CA 95352
11 telecopy: (209) 526-7575
12 City of Santa Clara:
Electric Department
13 Attn: Accounts Clerk
City of Santa Clara
14 1500 Warburton Avenue
Santa Clara CA 95050
15 telecopy: (408) 241-8291
16 City of Redding:
Electric Utility Director
17 City of Redding
760 Parkview Avenue
18 Redding CA 96001
telecopy: (530) 224-4389
19
20 19.3 In computing any period of time after notice has been given pursuant to Section 19.1
21 or after invoices have been rendered or payments have been made pursuant to
22 Section 19.2, such period shall commence on the date mailed. The desi�ation of the
23 name and address to which any such notice or demand is directed to a Party may be
24 changed at any time and from time to time by such Party giving notice to the other
25 Parties as above provided.
26
27
28 21
� �
1 20. APPLICABLE LAW:
2 This Agreement is made under and shall be governed by the laws of the State of California.
3 21. SEVERABILITY:
4 If any section, para�aph, clause or provision of this Agreement shall be finally adjudicated
5 by a court of competent jurisdiction to be invalid, the remainder of this Agreement shall
6 remain in full force and effect as though such section,paragraph, clause, or provision or any
7 part thereof so adjudicated to be invalid had not been included herein.
8 22. ASSIGNMENT OF AGREEMENT:
9 This Agreement shall inure to the benefit of and shall be binding upon the respective
10 successors and assigns of the Parties to this Agreement; provided, however, that except as
11 provided in Sections 14 and 15,neither this Agreement nor any right or interest herein shall
12 be transferred or assigned by any Party hereto so long as any of the obligations under the
13 Pacific Northwest Purchase Contract has not been fulfilled or until adequate provision for
14 the satisfaction of such obligations has been made by the Party and its successors or
15 assignees.
16 23. MEMBERS' OBLIGATIONS SEVERAL:
17 The obligation of each Member to make payments under this Agreement to M-S-R is a
18 several obligation and not a joint obligation with those of the other Members.
19 24. PACIFIC NORTHWEST UTILITIES AS THIRD-PARTY BENEFICIARIES:
20 The Parties agree that, among other things, this Agreement is made and entered into for the
21 benefit of the Pacific Northwest Utilities as third-party beneficiaries,
22 and any Pacific Northwest Utility shall have the right, as an express third-party beneficiary,
23 to enforce this Agreement by legal action, suit in equity or any other applicable legal remedy
24 25. HEADINGS NOT BINDING:
25 The headings and captions in this Agreement are for convenience only and in no way define,
26 limit or describe the scope or intent of any provisions or sections of this Agreement.
27
28 22
' � �
1 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
2 authorized representatives on the date set forth above.
3
4 M-S-R PUBLIC POWER AGENCY
5
6
7 By: Approved as to form:
8
WILLIAM C. WALBRIDGE STEVEN C. GROSS
9 General Manager General Counsel
10 "M-S-R"
11
12
13
14
15 MODESTO IRRIGATION DISTRICT,
a California lrrigation District
16
17 p oved s o f .
,�
18 `
SCOTT . STEFFE ALL N SHORT
19 Assistant General Counsel General Manager
20 Attest: 1231 Eleventh Street
Modesto, CA 95352
21 --� Telephone: (209) 526-7373
l �/ , '� Fax: (209) 526-7315
22 �'C_/� � %" �.� �,�i✓
VICKIE EHRLER
23 Secretary to the Board
"Modesto"
24
25 CITY OF SANTA CLARA, CALIFORNIA,
a chartered California municipal corporation
26
27
28 23
' i i►
. �. .
1 Approved as to form:
2
3 �-�Q'1^� V�--c�i/►tii.�
� �ROLAND D. PFEIFER JE FER P CINO
Assistant City Attorney C Manager
5 Attest: 1500 Warburton Avenue
Santa Clara, CA 95050
( Telephone: (408) 261-5292
Fax: (408) 261-2758
7 � � /��,�:<.� ��
8 �OCCIGNON�
City Clerk
9 "Santa Clara"
10
11
12
13
14 CITY OF REDDING, CALIFORNIA
a General Law City
15
16 Approved as to form:
17
18 W. LEONARD WINGATE MICHAEL WARREN
City Attorney City Manager
19
Attest: 760 Parkview Avenue
20 Redding, CA 96001
Telephone: (530) 225-4060
21 Fax: (530) 225-4325
22 CONME STROHMAYER
City Clerk
23 "Redding"
24
25
26
27
28 24
. „ • � �
RESOLUTION NO. 99-140
APPROVING THE AMENDED AND RESTATED PACIFIC NORTHWEST
PROJECT POWER SALES AGREEMENT BETWEEN THE M-S-R PUBLIC
POWER AGENCY AND THE MODESTO IRRIGATION DISTRICT, THE
CITY OF SANTA CLARA, AND THE CITY OF REDDING
BE IT RESOLVED, by the Board of Directors of the Modesto Irrigation District that the
that the General Manager is hereby authorized to execute the Amended and Restated Pacific
Northwest Project Power Sales Agreement between the M-S-R Public Power Agency and the
Modesto Imgation District, the City of Santa Clara and the City of Redding, upon final legal
approval.
Moved by Director Hensley, seconded by Director Van Groningen, that the foregoing
resolution be adopted.
The following vote was had:
Ayes: Directors Billington, Hensley, Kidd, Van Groningen and Warda
Noes: Directors None
Absent: Directors None
The President declared the resolution adopted.
000
I, Vickie Ehrler, Secretary of the Board of Directors of the MODESTO IRRIGATION
DISTRICT, do hereby CERTIFY that the foregoing is a full, true and correct copy of a resolution
duly adopted at a regular meeting of s�id Board of Directors held the 12th day of October, 1999.
� ' ^ � �
t�,-����%.
Secretary of the Board of Directors
of the Modesto Irrigation District